Citation Nr: 21023168 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-04 255A DATE: April 20, 2021 ORDER Entitlement to service connection for right lower extremity radiculopathy is denied. Entitlement to a rating in excess of 10 percent for a left finger disability is denied. REMANDED Entitlement to service connection for a genitourinary disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that at no time during the appeal was the Veteran diagnosed with right lower extremity radiculopathy, an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. 2. The Veteran is in receipt of the highest disability rating for his left finger disability, given the nature and location of the disability the Board finds that it is not better rated under another Diagnostic Code, and the preponderance of the evidence shows that it does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, at all times during the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. 2. The criteria for a rating in excess of 10 percent for a left finger disability are not met. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.71a, Diagnostic Code 5229. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from December 1987 to December 1997 and from December 2008 to December 2009. In August 2020, the Board of Veterans’ Appeal (Board) remanded the appeal Post-Remand Compliance The Board finds that the post-Remand development complied with the Remand. The Board has reached this conclusion because the December 2020 VA examiners provided opinions as to the diagnoses and etiology of the Veteran’s claimed right lower extremity radiculopathy based on the record and controlling scientific and medical evidence taking into account, among other things, his in-service and post-service records as well as his lay claims regarding observable symptomatology as well as provided all needed medical opinions needed to rate the left finger disability under all applicable rating criteria. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). The Board also finds that the post-Remand development complied with the Remand because while the appeal was in Remand status the regional office (RO) obtained and associated with the record all identified and available VA and private treatment records. See 38 U.S.C. § 5103A(b); Stegall, supra; D’Aries, supra. Given the above the Board finds that it need not again remand the claim because it would further delay the appeal and impose additional burdens on VA with no benefit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Service Connection Claim The Veteran claims, in substance, that service connection is warranted for right lower extremity radiculopathy. The Veteran contends he has right lower extremity radiculopathy that was incurred in and due to his time in service or is proximately due to his service-connected back disability. Specifically, the Veteran has said that while in service, he fell off a tank and injured himself, to include an injury to his low back and lower extremities. See e.g. March 2003 statement. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Court in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) held, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases like the current appeal in which Veterans have served in the Persian Gulf since August 2, 1990. Therefore, the Board finds that it is also required to consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. See 38 C.F.R. § 3.117 (d)(1) and (2) (a “Persian Gulf veteran” is defined as “a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. The “Southwest Asia theater of operations” includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations). In this regard, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A “medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes that while service treatment records dated in April 2008 mentioning lower back injuries that included numbness and tingling in his back, they do not make mention of any extremity problems. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Likewise, and more importantly, while the post-service records document the Veteran’s complaints and/or treatment for right leg pain and numbness, the Board finds that the most probative evidence of record is the December 2020 VA examination which was held for the express purpose of obtaining a diagnosis and the opinion by the examiner that the Veteran did not have right lower extremity radiculopathy despite being service-connected for a back disability. See Owens, supra. The Board has reached this conclusion because the opinion was based on the record and controlling scientific and medical evidence and considered, among other things, the Veteran’s in-service and post-service records as well as his lay claims regarding observable symptomatology. Id. Further, notwithstanding the Veteran’s documented service in the Southwest Asia theater of operations during the Persian Gulf War and the Federal Circuit’s holding in Joyner, supra, the Board finds that the record is negative for evidence that the appellant has an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. See 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. In fact, the Veteran himself has never made such claims. Likewise, while the Veteran is competent to report on the symptoms he observes, the Board finds that he is not competent to diagnose right lower extremity radiculopathy nor diagnose an undiagnosed illness because diagnosing them requires special medical training that he does not have and therefore he cannot provide the missing diagnoses. See Davidson, supra. Lastly, the Board also finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) because nothing in the record shows the claimed disability results in functional impairment that affects earning capacity. See Owens, supra; also see Wait v. Wilkie, No. 18-4349 (August 26, 2020). Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have a diagnosis of right lower extremity radiculopathy nor an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology manifested by radicular like symptoms at any time during the pendency of the appeal. See Owens, supra. Therefore, the Board finds that the Veteran’s claim of service connection for right lower extremity radiculopathy is denied. 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. The Rating Claim The Veteran contends his left finger disability is worse than indicated by his 10 percent rating. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Veteran’s left finger disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5229. The new regulation changes did not impact this diagnostic code. The Veteran is left handed. Initially, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. However, these changes did not change the way finger disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5229. Therefore, the Board finds that a Remand to provide the Veteran with notice of the change in the rating criteria is not required. Under Diagnostic Code 5229, a noncompensable rating is warranted for an extremity with a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degree. A 10 percent rating is warranted for an extremity with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. Given the above, the Board finds that a higher rating is not warranted for the Veteran’s left finger disability under old or new Diagnostic Code 5229 because the 10 percent rating already assigned the disability is the maximum rating available and given the nature and location of the disability the Board finds that it is not better rated under another Diagnostic Code. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit); Butts, supra. The Board has also considered whether the Veteran’s left finger disability warrants referral to the Director of Compensation and Pension for extraschedular consideration. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board does not find referral for extraschedular consideration is warranted because the schedular criteria adequately describes the severity and symptoms of the Veteran’s disability (such as pain and limitation of motion) and doesn’t present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). While the Veteran’s disabilities clearly bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. However, because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). REASONS FOR REMAND Entitlement to service connection for a genitourinary disability is remanded. The Veteran contends he has a genitourinary disability that was incurred in and due ot his time in service. Specifically, the Veteran says that after his elective circumcision in service, he has an abnormal urinary stream. In a June 2011 VA examination, the Veteran noted two instances of bed wetting prior to starting treatment for diabetes. The examiner noted that the Veteran’s bladder problems stopped once he began treatment for diabetes. The Veteran had an examination for his genitourinary disability in December 2020 and the examiner noted the Veteran’s diagnosis of an abnormal urinary stream, which was diagnosed that month. The Veteran said he was circumcised in 1996 and since then, had frequent possible infections, a foul smell, and a curved urinary system. The examiner reported the Veteran did not have a voiding dysfunction or any other diagnoses other than erectile dysfunction. The examiner opined it was less likely than not the Veteran’s genitourinary disability was incurred during his time in service. The examiner noted the Veteran’s service treatment records did not show any abnormal urinary stream problems while in service, nor did they show complaints of hygiene issues. The examiner also said the Veteran’s erectile dysfunction was related to his diabetes and age and the Board notes the Veteran is already service-connected for this disability. However, the December 2020 VA examiner while offering an opinion regarding direct service connection, an opinion regarding secondary service connection was not offered. Therefore, a remand is required in order to obtain this opinion. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). In this regard, when providing the requested medical opinions and again adjudicating the claim the VA examiner and the regional office (RO) must apply the United States Court of Appeals for Veterans Claims (Court’s) new definition of aggravation which now includes a temporary worsening of a disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). Entitlement to a TDIU is remanded. Initially, the Board notes that the Veteran’s TDIU claim comes to the Board as part of his increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Moreover, while the Board notes that the Veteran has been in receipt of a combined 100 percent rating for his service connected disabilities since 2010, it nonetheless remains part and parcel of his increased rating claim unless he has received the highest rating possible for the entire period on appeal, regardless of the date of a formal TDIU claim. See Harper v. Wilkie, 30 Vet. App. 356, 362 (2018). In this regard, although 38 C.F.R. § 4.16(a) applies only “where the schedular rating is less than total,” a grant of a 100 percent disability, however, does not always render the issue of TDIU moot. The issue of entitlement to a TDIU is not moot where it can assist a veteran in obtaining special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s)(1). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). SMC is payable under 38 U.S.C. § 1114(s)(1) when a veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. For the purpose of meeting the first criterion, a rating of 100 percent may be a schedular rating, an extraschedular rating, or a temporary total rating. Additionally, a TDIU may meet the criterion, but only if assigned for a single disability. See Bradley, 22 Vet. App. at 294; Buie, 24 Vet. App. at 242. Given the above the Board finds that the claim for a TDIU remains’ viable even though the Veteran has a combined 100 percent rating because the record does not show that he has received the highest rating possible for the entire period on appeal for each of his service connected disabilities. See Harper, supra. In this regard, the Board finds that the information of record is insufficient to determine when, if ever, his service-connected disabilities prevented him from obtain and maintaining substantial gainful employment. See 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a remand is required to obtain from the Veteran a fully executed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, so the Board has the needed information to adjudicate whether his service-connected disabilities prevent him from obtain and maintaining substantial gainful employment given his prior vocational history, work experience, and education. See 38 U.S.C. § 5103A(b). These issues are REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s and/or his representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, whether he continues to be unemployed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevents him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. Any help from the Veteran in obtaining this information would be appreciated. The form cited above is available on-line. The request should also notify the Veteran that his claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing at the VA Form 21-8940. 4. After completing the above development and all outstanding records have been associated with the claims file, to the extent possible, the Veteran should be afforded an appropriate VA examination for his genitourinary disability. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide diagnoses for all genitourinary disabilities. If the Veteran earlier had a genitourinary disability which has since resolved, the examiner should say so. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any genitourinary disability diagnosed during the pendency of the appeal is due to a disease or injury while on active duty. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any genitourinary disability diagnosed during the pendency of the appeal was caused by any of the Veteran’s service connected disabilities to include the medication he takes to treat these disabilities. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any genitourinary disability diagnosed during the pendency of the appeal was aggravated by any of the Veteran’s service connected disabilities to include the medication he takes to treat these disabilities. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing the aggravation opinion the examiner should specifically consider and discuss the Court in Ward, supra, new definition of aggravation which now includes temporary worsening of a disability. In providing answers to all the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. (Continued on the next page)   In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.